MAHENDRA SINGH Vs. BOARD OF REVENUE ALLD.

JUDGEMENT

(1.) Heard Sri Suresh Chandra Varma and Sri Ramesh Chandra, learned counsel for the petitioners, Sri Krishna Mohan, Sri Shiv Nath Singh, learned Senior Advocate and Sri Sher Bahadur Singh, learned counsel for respondent no.3- Gaon Sabha.

(2.) Brief facts of the case are petitioners filed two suits under Sec. 229B of U.P.Z.A. and L.R. Act on the basis of lease deed executed in their favour by the erstwhile Zamindar on 22/6/1948 in respect of Khata No.38 area 10.04 acres. Another suit was filed by Ayodhya. Suits were dismissed by the trial Court against which two appeals were filed i.e. Appeal Nos.798/312 and 398/213 (Mahendra Singh Vs. Gaon Sabha and Others). Additional Commissioner vide separate judgment dtd. 29/8/1984 dismissed both the appeals. Petitioner no.1 as well as father of the petitioner no.2 filed two second appeals which were numbered as Second Appeal No.3 and 4 of 1984-85. Board of Revenue vide judgment and order dtd. 11/7/1990 allowed both the appeals and decreed both the suits. Gaon Sabha and State of U.P. were parties to the suit under Sec. 229B of the U.P.Z.A. and L.R. Act and they had full notice and knowledge of the entire proceeding. Gaon Sabha and State of U.P. filed Restoration Application No.229 of 2009-10 (State Vs. Ayodhya Prasad and Others), learned member of Board of Revenue recorded the finding that judgment dtd. 11/7/1990 was not ex-parte, as such, the same should be treated as review petition and should be placed before the Division Bench of the Board of Revenue, by the same order effect and operation of the order dtd. 11/7/1990 has been stayed. The matter was placed before the Division Bench of the Board of Revenue and they held that matter be placed before single member as the application is not review application and it can be treated only as restoration application, accordingly, the matter was again placed before single member of the Board of Revenue. The Board of Revenue vide order dtd. 18/6/1996 rejected the restoration application dtd. 11/7/1990 filed by State and Gaon Sabha. On 19/3/2013, two review applications were filed by DGC (Revenue) which were registered as Review Application Nos.1/2012-13 and 2/2012-13. Along with review application, the application for condonation of delay and affidavit were also filed, the deponent of the affidavit filed in the support of the review application as well as delay condonation application was not pradhan of the Gaon Sabha, he was clerk of DGC (Revenue), who has filed his affidavit, review application were placed before the Division Bench of the Board of Revenue vide order dtd. 25/1/2013. Petitioners filed a Civil Misc. Writ Petition No.64148 of 2013 against the order of Board of Revenue dtd. 25/1/2013. The writ petition was disposed of by this Court vide judgment dtd. 25/11/2013 with direction to decide the review application within two months from the date of production of certified copy of the order. Respondent no.4, Ravindra also filed a Civil Misc. Writ Petition No.5377 of 2013 before this Court which was dismissed vide order dtd. 19/9/2013 with a clear finding that there is no explanation of delay of 22 years. Division Bench of the Board of Revenue vide judgment dtd. 15/7/2015 allowed both the review applications setting aside the order dtd. 11/7/1990 passed in Second Appeal Nos.3 and 4 and second appeal was restored to its original number, hence this writ petition. This Court while entertaining the writ petition at the admission stage has passed the following interim order dtd. 8/9/2015:

(3.) Learned counsel for the petitioners submitted that no sufficient cause has been shown for condonation of delay of 22 years in filing the review application against the order of Board of Revenue allowing the second appeal on merit. He further submitted that Board of Revenue has committed illegality while considering the review application taking into consideration the merit of the case also. He also submitted that none of the ground mentioned under Order 47 Rule 1 of Code of Civil Procedure was available but the Board of Revenue has allowed the highly time barred review application. He next submitted that State of U.P. and Gaon Sabha had every knowledge of the entire proceeding even they were heard by the Board of Revenue while the second appeal was allowed on merit in the year 1990, as such, the delay in filing the review application has been illegally condoned and review application has been illegally allowed by the Board of Revenue. He further submitted that Writ-B No.51377 of 2013 filed at the instance of respondent no.4 against the order dtd. 11/7/1990 passed by Board of Revenue was rejected vide order dtd. 19/9/2013. Counsel for the petitioners placed reliance upon the judgment of this Court challenged in the case of Kanpur Developement Authority Through Chairman Vs. Raksha Rani Agarwal (First Appeal Defective No.50 of 2008) dtd. 9/12/2015 in which the first appeal filed with delay before the High Court was dismissed on the ground of limitation, the Paragraph Nos.21 and 22 of the judgment rendered in Kanpur Development Authority (supra) are as follows: